Public Protector’s Report: deliberations

Meeting report

PUBLIC PROTECTOR AD HOC COMMITTEE
17 June 2004
Public Protector’s Report: Deliberations

Chairperson: Mr I Vadi (ANC)

Documents handed out
Public Protector Report on NPA

SUMMARY
The UDM Party expressed concern about the Public Protector’s report which alleged lack of co-operation from the Director of Public Prosecutions and the Minister of Justice. General Holomisa said that the Public Protector should have sought guidance from Parliament before compiling a report that was not based on all the pertinent facts. The Committee continued with arguments about whether the principle of sub-judice was relevant. The Committee also engaged in a heated debate on whether the DPP’s public pronouncement that there was a prima facie case against the Deputy President, infringed the latter’s constitutional right to dignity. The DA insisted that justice would not be done to the report if the Committee did not pursue the release of all the relevant documents. Ms Taljaard said it would help the process if the Committee sought a detailed legal opinion on the importance of the sub-judice rule. This proposition was vigorously resisted by the ANC. Mr Masutha firmly reiterated the Committee decision that individual Members were free to seek out any pertinent information.

Minutes
The Chair said that the Committee would focus on the interaction and relationship between the Public Protector and the Director of Public Prosecutions (DPP). Apart from investigating the complaint by the Deputy President, the Public Protector had also reported on his interaction with the DPP.

Ms Taljaard (DA) said that she had struggled to secure the relevant documents from the DPP office. They would only release documents if requested by the Committee. She asked the Chair to give direction.

General Holomisa (UDM) said they should examine the relationship between the offices of the Public Protector and the DPP. It seemed the DPP had hid behind the sub-judice rule in declining to co-operate. The Public Protector says that although the DPP did eventually come back to him, he did not do so in suitable manner. Members should decide whether the DPP was correct in citing the sub-judice rule and whether he deliberately failed to collaborate with the Public Protector. Ms Taljaard said it would help the process if the Committee sought a detailed legal opinion on the sub-judice rule.

Ms De Lille (ID) said that the Public Protector’s complaint was about the DPP’s conduct and not related to the Shaik case pending in court. The question of sub-judice therefore did not arise. Mr Sibanyoni (ANC) agreed that the issue of sub-judice should not detain members unnecessarily. The Constitution clearly spelled out that the Public Protector had powers to investigate any matter save for court decisions. In this case, the Deputy President’s complaint was not a subject of a court decision.

Mr Baloyi (ANC) said that it was important for public institutions to help each other in the spirit of collaborative governance. It was clear that the Committee was primarily dealing with conduct and sub-judice should not be the primary focus. Ms Taljaard insisted however that the Deputy President’s complaint was inextricably linked to the issue of sub-judice. Mr Masutha (ANC) explained that the question of sub-judice went to the core of separation of powers. It was right that the Public Protector could not delve into matters pending before court. The Public Protector had acknowledged this obligation in his request for information from the DPP. He undertook not to publish on matters pending before court. Instead of receiving maximum support from the DPP, the Public Protector had received an evasive response. He added that Members were free to seek expert opinion as individuals.

Mr Mthembu (ANC) thought the sub-judice query was covered in paragraphs 13.1 - 6. The question of whether there was a prima facie case against the Deputy President did not offend the sub-judice rule. Indeed, most issues the Public Protector touched on were about confirming certain positions the DPP had taken. There was no clear connection with the sub-judice rule.

Mr Holomisa referred to paragraph 3.3.1.1 and said the issue was not about behaviour alone. The statement of 23 August 2003 had created the wrong impression that the Deputy President had been cleared of all charges. The government had published that investigations in the arms deal scandal were ongoing. The state was still seeking information from the French government to pursue the matter further. It was important to call in the principle players in this saga to get clarification on some outstanding issues.

Mr Van de Merwe (IFP) agreed with the DPP sub-judice explanation. On the question of the prima facie case against the Deputy President, the DPP owed the public an explanation about why it was not necessary to prosecute. Ms Tobias (ANC) disagreed and said the question of sub-judice had not arisen because the Public Protector had undertaken to treat all information in the strictest confidence.

Mr Godi (PAC) said the report showed that some documents had indeed been released to the Public Protector. The problem was that the supplied information was inadequate. Further information was supplied only after the intervention of the President. The nature of most of this information did not infringe on the sub-judice rule. The unfolding interaction between the two offices was not satisfactory at all.

Ms Johnson observed that none of this debate was new. The sub-judice rule did not apply to the Public Protector because nothing in law prevented him from investigating matters pending before the court. The Deputy President had publicly urged the relevant authorities to charge him if they had sufficient evidence. There was no need to summon the DPP before the Committee since he had already informed the Public Protector that he would not divulge certain information anywhere.

Ms De Lille wondered whether the Public Protector felt that his report would have been different if he had received the necessary support from the DPP. Questions regarding sub-judice and prima facie were unnecessary at this stage.

General Holomisa said that neither the Public Protector nor the Committee could make a sound finding unless the issue of prima facie had been dealt with. It would be better to summon the DPP or seek some written submission to determine whether there was malice in the DDP’s pronouncement. The entire report was problematic. It purported to reach certain findings even while the Public Protector failed to secure the necessary co-operation from the DPP. The Public Protector should have sought guidance from Parliament before compiling his report.

Mr Masutha said that the Public Protector had drawn the attention of the House to the extent of non-co-operation. It would be speculative to state that the Public Protector would have reached different conclusions findings without co-operation from the DPP. It is unnecessary for these maters to detain the Committee any further. He referred to par. 18.3.3 –5 and noted that the response from Advocate McCarthy clearly advanced a particular attitude to the Public Protector’s request. No effort was made to assist in terms of the principles of collaborative government.

Mr Baloyi said that the report indicated what the Public Protector had met with obstacles, so the main issue surrounded the impact of those obstacles. The Committee was dealing with the report in a manner that would avoid re-opening the investigation process, and many questions were just suppositions.

Mr Sibanyoni said that the effect of non co-operation was supplied at paragraph 24.4. It had resulted in the Public Protector concluding a report without proper responses.

Ms De Lille said that Advocate McCarthy had indicated that the DPP might call the Deputy President as a witness, hence the relevance of the sub-judice rule. Mr Godi agreed with Ms De Lille that the Committee had veered off course. He proposed that the Committee move to observations and findings. Mr Masutha clarified that this process to open up issues for comment had been agreed upon earlier. Perhaps it was time to crystallise issues and split them into main focus areas.

The Chair ruled that the Committee would not delve into the findings at this point. It was true that Members now seized the germane issues. They would start on findings at the next sitting.

The meeting was adjourned.